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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20070E4671991-02-26026 February 1991 Comment Opposing Petition for Rulemaking PRM-73-9 Re Upgrading Design Basis Threat for Radiological Sabotage of Nuclear Reactors.Recommends That NRC Deny Petition to Increase Design Basis Threat for Security ML20207C1331986-12-18018 December 1986 Order Terminating CPPR-81 & CPPR-82,per Util 860711 Motion to Withdraw Applications for OLs ML20215E7301986-12-17017 December 1986 Memorandum & Order Authorizing Withdrawal of OL Application & Dismissing OL Proceeding,Per Applicant 860711 Motion. Served on 861218 ML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20211L6391986-12-11011 December 1986 Affidavit of Gb Staley Re Preparation of Answers to Board 861203 Questions on Termination of OL Proceeding. Certificate of Svc Encl ML20211L6181986-12-11011 December 1986 Response to Board 861203 Questions Re Util Request to Terminate OL Proceeding ML20214Q4431986-12-0303 December 1986 Memorandum & Order Granting Motion to Expedite Completion of Withdrawal Proceedings & Posing Questions to Parties.Served on 861204 ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20214T7361986-09-26026 September 1986 Memorandum & Order Dismissing OM Proceeding as Moot & Deferring Action on Applicant Motion for Authorization to Withdraw OL Application Pending NRC Preparation of Environ Assessment.Served on 860929 ML20212M7661986-08-25025 August 1986 Response to Util 860711 Motion for Authorization to Withdraw OL Application & for Dismissal of OL & Order of Mod Proceedings.Board Should Hold Motion in Abeyance Pending NRC Review of Stabilization Plan.Certificate of Svc Encl ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20212B0311986-08-0101 August 1986 Memorandum & Order Withdrawing Retention of Jurisdiction Over Radon Issue Presented in Facility CP Proceeding & Vacating ASLB Partial Initial Decision on Remedial Soils in Consolidated CP Mod & OL Proceeding.Served on 860801 ML20212B0521986-07-31031 July 1986 Order Extending Time Until 860815 for Util & Other Parties to Respond to Questions Posed by 860716 ASLB Order.Time Extended Until 860825 for NRC Response to ASLB Questions & Util Motion.Served on 860801 ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20207E2851986-07-16016 July 1986 Order Presenting Questions in Response to Util 860711 Motion to Dismiss OL Proceeding & to Terminate Order of Mod Proceeding.Served on 860717 ML20202G1621986-07-11011 July 1986 Notice of Change of Address for Washington Ofc of Isham, Lincoln & Beale,Attys for Util.Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20202G0491986-07-10010 July 1986 Affidavit of JW Cook Re Conversion of Plant Into combined- cycle,gas-fired Power Plant.Plant Never Operable as Nuclear facility.Nuclear-related Equipment Will Be Sold ML20202G0281986-07-0808 July 1986 Affidavit of Ta Mcnish Re True & Correct Extracts of 860408 & 0618 Minutes of Meetings.Resolutions Recited Therein in Full Force & Effect ML20198J3861986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20198J4651986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechhoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20137E0041985-11-21021 November 1985 Notice of Appearance in Proceeding ML20137D9651985-11-21021 November 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20133F6421985-10-0909 October 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20134N3771985-08-30030 August 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl DD-84-17, Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 8506241985-06-24024 June 1985 Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 850624 ML20127N7591985-06-20020 June 1985 Transcript of Commission 850620 Affirmation/Discussion & Vote in Washington,Dc Concerning Denial of 2.206 Petition for Midland plant,SECY-85-60 Concerning Pressurized Thermal Shock Rule & Shoreham Order.Pp 1-4 ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4751985-04-19019 April 1985 Memorandum in Response to Aslab 850405 Order Re Dismissal of OL Application.Application Neither Abandoned Nor Delayed in Dilutory Manner.Certificate of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20107K8011984-11-0101 November 1984 Affidavit of Jd Selby Re Plans Concerning Facilities.Const Will Be Resumed Only If Proposed by Appropriate Governmental Agencies & Officials & If Funds from Some Other Source Become Available.Related Correspondence ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20092J0241984-06-22022 June 1984 Reply to B Stamiris Second Supplemental Proposed Findings of Fact & Conclusions of Law on QA & Mgt Attitude Issues. Certificate of Svc Encl ML20092J0361984-06-22022 June 1984 Reply to NRC Further Supplemental Findings of Fact & Conclusions of Law Re QA 1991-02-26
[Table view] Category:PLEADINGS
MONTHYEARML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20212M7661986-08-25025 August 1986 Response to Util 860711 Motion for Authorization to Withdraw OL Application & for Dismissal of OL & Order of Mod Proceedings.Board Should Hold Motion in Abeyance Pending NRC Review of Stabilization Plan.Certificate of Svc Encl ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20084J6111984-05-0404 May 1984 Responds Opposing Sinclair 840419 Motion to Request Caseload Forecast Panel Evaluate New Const Completion Schedule.Aslb Should Deny Request for Relief Contained in Motion. Certificate of Svc Encl ML20084H2581984-05-0202 May 1984 Memorandum in Opposition to Govt Accountability Project (Gap) 840417 Petition for Review.Gap Policy on Disclosures to Press Rules Out Genuine Claim That Affidavits Were to Be Maintained in Total Confidence.Certificate of Svc Encl ML20083N6481984-04-17017 April 1984 Petition for Review of Aslab 840330 Decision & Order ALAB-764 Re Subpoenas Directed to Govt Accountability Project.Aslab Erroneous Re Important Questions of Law & Policy.Certificate of Svc Encl ML20087M9821984-03-30030 March 1984 Response to B Stamiris 840304 New Contention Re Transamerica Delaval,Inc Diesel Generators.Bases in Support of Contention Clarified.Certificate of Svc Encl ML20079M6481984-01-23023 January 1984 Request for Leave to File Encl Corrected Copies of Applicant 831209 Memorandum in Opposition to Appeal of Govt Accountability Project.Table of Contents & Table of Authorities Inadvertently Omitted.Certificate of Svc Encl ML20082U0311983-12-0909 December 1983 Memorandum Opposing Govt Accountability Project (Gap) 831021 Appeal of ASLB Order Granting Util Motion to Depose Gap Witnesses.First Amend Argument Inapplicable Since Affiant Identity Will Not Be Disclosed.Certificate of Svc Encl ML20082E1341983-11-22022 November 1983 Request for Extension Until 831209 to File Brief Opposing Appeal of Govt Accountability Project Deponents.Certificate of Svc Encl ML20086A8801983-11-0404 November 1983 Response to Util Motion to Compel & Application for Enforcement of Subpoenas.Submission to Discovery Would Cause Immediate Grave & Irreparable Injury to Organizational Viability.Certificate of Svc Encl.Related Correspondence ML20081F8991983-11-0202 November 1983 Motion to Compel & Application for Enforcement of Subpoenas Against Govt Accountability Project Deponents,L Clark, T Devine,Bp Garde & L Hallberg.Response from Deponents Must Be Filed Before 831110.Certificate of Svc Encl ML20081E8931983-10-31031 October 1983 Reply to Applicant 831014 Response to Second Supplemental Memorandum in Support of B Stamiris 831005 Motion to Litigate Two Dow Issues.Issues Timely Raised & Present New Evidence.Certificate of Svc Encl ML20090H4271983-10-26026 October 1983 Motion to Continue Beginning Date of Hearings Scheduled for 831031 to 3 Days After Date.Extended Hearing Necessary to Allow Time to Receive Responses to 831011 Discovery Requests.W/Certificate of Svc ML20081B1751983-10-25025 October 1983 Motion to Compel CPC Responses to 831011 Interrogatories & Request for Production Re Investigation of Alleged Violation.Certificate of Svc Encl ML20090H3401983-10-25025 October 1983 Motion for Admission Into Evidence of Transcript of Jl Donnell 831015 Deposition.Certificate of Svc Encl ML20081E9481983-10-25025 October 1983 Memorandum in Support of 831021 Appeal of ASLB Orders Granting Issuance of Subpoenas.Subpoenas Violate First Amend Rights.Certificate of Svc Encl ML20081B0681983-10-21021 October 1983 Memorandum in Support of Appeal from ASLB Orders Granting Discovery Against Govt Accountability Project.Subpoenas Violate Common Law of Privilege.Util Showed No Compelling Need for Discovery ML20078K3141983-10-14014 October 1983 Response to B Stamiris 831005 Second Supplemental Memorandum Supporting Dow Issues.Stamiris Fails to Show New & Significant Info Justifying Reopening Record.Certificate of Svc Encl ML20078F5561983-10-0505 October 1983 Second Supplemental Memorandum in Support of Intervenor Stamiris Motion to Litigate Dow Chemical Co Issues Against Applicant.Dow Documents & Complaints Support Litigation of Issues Raised in Original Motion.Certificate of Svc Encl ML20080P1161983-10-0303 October 1983 Errata to 830930 Motion for Reconsideration.Certificate of Svc Encl ML20080P9131983-10-0303 October 1983 Motion to Stay Depositions of L Clark,T Devine,Bp Garde & L Hallberg as Directed in ASLB 830831 Order.Depositions Should Be Stayed Pending Review of 830930 Motion for Reconsideration.Certificate of Svc Encl ML20078A3471983-09-21021 September 1983 Supplemental Memorandum in Support of 830808 Motion to Litigate Dow Issues.Documents Reveal That Util Knew Fuel Load Dates Presented to NRC Jul 1980 - Apr 1983 False. Certificate of Svc Encl ML20077S7161983-09-19019 September 1983 Motion by L Clark,T Devine,Bp Garde & L Hallberg for Extension Until 830930 to File Motion for Reconsideration of ASLB 830831 Order Denying Motion to Quash Subpoenas. Certificate of Svc Encl ML20024E8261983-09-0202 September 1983 Response Opposing M Sinclair Motion to Reconsider Privilege Ruling.Presence of Bechtel Officials at 821124 Meeting Does Not Destroy Privilege.Bechtel & CPC Share Common Legal Interest.Certificate of Svc Encl ML20024E8771983-09-0202 September 1983 Motion to Reconsider Schedule for Submitting Proposed Findings of Fact on Remedial Soils Issues.Intervenors Should Be Required to File Proposed Findings on Remedial Soils Issues by 831115.Certificate of Svc Encl ML20076F3261983-08-23023 August 1983 Motion for Extension Until 830902 to Respond to Intervenor Motion to Reconsider Order Upholding atty-client Privilege Protection for 821124 Util/Bechtel Meeting.Motion Received 5 Days After Mailing.W/Certificate of Svc ML20076C6711983-08-17017 August 1983 Response to M Sinclair & B Stamiris 830728 Motions Re Dow Vs Util Lawsuit.Aslb Should Defer Motions for 30 Days.Motions Could Be Refiled After Documents Reviewed.Two Oversize Drawings Encl.Aperture Cards in Pdr.Certificate of Svc Encl 1986-08-25
[Table view] |
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ATOMIC ENERGY COMMISSION $
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CONSUMERS POWER COMPANY ) Docket Nos. 50-329
). 50-330 (Midland Plant, Units 1 and 2) )
APPLICANT'S MEMORANDUM IN OPPOSITION TO THE MAPLETON INTERVENORS' OBJECTIONS TO THE BOARD ORDER OF AUGUST 26, 1971 By the Board's order of August 26, 1971, the Mapleten intervenors were required to file their written evidence with respect to their contentions 3 and 4 by September 15, 1971. They have not done so.* Instead, one of their counsel, Mr. Like has written a letter dated September 14, .
1971 which is, in effect, a motion for reconsideration of the Board's August 26th order. As such, it comes so late as to raise serious doubt as to the bona fides of the intervenors; the letter should not be allowed to excuse the Mapleton intervenors from meeting the deadlines imposed in that order. '
- They did file an affidavit of Professor Ernst Eckert on the feasibility of supplying process steam ta Dow by means other than piping from a nuclear plant at the proposed site.
This has nothing to do with their contentions 3 and 4 but does relate to their contention 5,'which both the Board and Mr. Like regarded from the outset as a non-radiological issue under NEPA (See Tr. 3204, 3206 and 3207) . Although it is helpful to have Professor Eckert's affidavit in terms of laying the groundwork for the NEPA phase of this proceeding, its sub-mission does not serve the purpose of paragraph IA of the Board's August 26th orJer, which, as its heading shows, was to conclude the submission of evidence on " issues other than ECCS and environmental issues." (Initial caps . omitted) .
8007230 f @ & L,11
- 1. The Use of Written Evidence The Mapleton intervenors take exception to the Board's order that "no further oral evidence will be received except by leave of the Board," asserting that it violates due process and $556 (d) of the Admihistrative Procedure Act.
At the hearing on July D,1971, after having been reminded that he vould have to submit written evidence on contentions 3 and 4 (Tr. 3196 ) , Mr. Like similarly asserted that to require written testimony would violate the due process clause and the Administrative Procedure Act (Tr. 3197) . The Chairman
> said he disagreed but invited Mr. Like to file a brief on that, if he wanted to (Tr. 3198). Mr. Like filed no such brief but waited until the day before his evidence was due' and made the same bald allegation of illegality. We submit that his continuing failure to support his assertion is
~
itself indicative of its lack of foundation. However, we will briefly show that the law on this subject is contrary to the Mapleton assertion. ,
The Mapleton intervenors appear to rely on that part of the next to last sentence of 5556 (d) which states: "A party is entitled to present his case or defense by oral or documentary evidence...." They ignore the las.t sentence of 5556 (d) which provides, insofar as is relevant: "In...
applications for initial licenses an agency may, when a i
party will not be prejudiced thereby, adopt procedures for
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the submission of all or part of the evidence in written form". Section 2.743 (b) of the Commission 's rules provides in conformity with this sentence:
"Where the interesO of any party will not be prejudiced, the parties are encouraged to submit all or part of the direct testimony of witnesses in written form, unless objections are presented and unless otherwise ordered by the presiding officer."
In implementation of that provision, Judge Henry Friendly, writing for a three-judge District Court in T.ong Island RR
- v. United States, 318 F. Supp. 490, 498-500 (E . D. N . Y . 1970),
stated that S556 (d) means that a party may not complain about an agency's requiring the submission of evidence in written form un3ess he can show that this prejudiced him in the presentation of his case.* No such showing has been made here and' no prejudice has been alleged.
- Of course , if the written ev' dence i of opposing parties were to produce matcrial disputed issues of fact, the Mapleton intervenors could request and the Board.could consider whether there is a need for cross-examination with regard to those particular issues. Clearly, in the absence of material ,
disputed issues of fact there is no right to cross-examination, either under the Constitution or the Administrative Procedure Act. Ashworth Transfer,Inc. v. United States, 315 F. Supp.
199, 202-03 (D. Utah 1970); Allied Van Lines Co. v. United State _s, 303 F. Supp. 742, 748-49 (C.D. Cal. 1969) ; National Trailer Convoy, Inc. v. United States, 293 F. Supp. 634, 636 (N.D. Okl. 1968). '
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. . -4 Mapleton's argument that the requirement of written evidence discriminates against the intervenors because not similarly applied to applicant and staff is so much bunk.
The Applicant has submitted the PSAR, its environmental report, various technical topical reports and much additional-evidence in writing. In addition, the applicant will submit further written evidence with regard to ECCS and a written supplemental NEPA report. AEC.dtaff has submitted a written Staff Safety Evaluation as well as additional written ,
evidence. The staff will file a written detailed environ-mental statement. Applicant and staff are required by paragraph IA3 of the Board's August 26th order to submit written responses to the intervenors' submission filed under paragraph IA2.
In cases of such complex factual and technical evidence involving potentially such wide-ranging issues as the present proceeding, the. Board is clearly justified in imposing the requirement of written evidence. In the absence of such a requirement, it is hard to see how this case could ever be '
} brought to a conclusion.
Finally, the Board has held that contentions 3 and 4 are challenges'to Part 20 of the commission's regulations (Tr.
2953-54, 2955, 2956-57, 3209-10). Therefore, they are not-properly at issue here unless the Mapleton'intervenors make a proper showing, by offer of proof, that there is .
substantial doubt of their validity as applied to this case. . -
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Calvert Cliffs Memorandum, CCH ATOMIC ENERGY LAW REPORTER 111,578.02. Tne rule of the Calvert Cliffs Memorandum has not been affected by anything in the D.C. Circuit's decision in Calvert Cliffs.
- 2. The Health and Safety Issues The Mapleton intervenors ardue in their letter (pp. 1-4) that it is improper, under the new Appendix D to Part 50, to require any evidence to be submitted, even as to radiological or health and safety issues, before the filing of a revised environmental report and a detailed statement by the applicant and staff. This position is in conflict with the provision in Section D1 of Appendix D which directs the Board in pending hearings to " proceed expeditiously with the. aspects of the .
application related to the Commission's licensing requirements under the Atomic Energy Act pending the . submission of Environmental Reports and Detailed Statements...." This aspect of the Board's order is in direct implementation of that provision.
Mr. Like, at pp.2-3 of his letter, argues that
?
. Mapleton contentions 3 and 4 are really environmental and that it was therefore improper to require evidence to be .
filed in support of them by September 15th. This is incon-sistent with the statement of Mr. Ginster, at the hearing on July 9th, in which he argued that th'ey were health and nafety issues, not environmental issues, and thus within m ,, _ _-
m e the Board's jurisdiction under the old Appendix D (Tr. 2954).
Patently, these contentions relate to radiological hazards and therefore were part of this proceeding before the D.C. Circuit's Calvert Cliffs de' cision.
The Mapleton intervenors 111ege (letter, p.3) that their experts need additional time to prepare testimony as'to contentions 3 and 4 because of trips abroad or academic commitments. Normally, we would be hard pressed to oppose a reasonable extension of time for such reasons but we think that, in ruling on this request, the Board should consider the many une.:plained failures of the Mapleton intervenors to meet deadlines set by the Board in this proceeding.
The Board's crder dated December 8, 1970 required them to set forth the legal issues they would raise by December 11, 1970. They defaulted on that order. The matter was taken up at the January 21 hearing and they were ordered to file a statement of their contentions within 20 days thereaf ter (Tr. 544-46). At the May 1 conference, Mr. Ginster admitted being in default and promised to file a statement of factual and legal contentions, as well as the names of his expert witnesses, within two weeks (Tr. 1218-19). His statement of June 8, 1971 was filed in response to that directive. The Board found it inadequate and asked the Mapleton intervenors for an additional specification of contentions on June 24, 1971, Mr. Ginster having been absent during the earlier days
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i of the hearing. These were finally supplied on July 12, 1971.
The Board's order of May 18, 1971 required any off.nr of proof by any intervenors with regard to the validity of Part 20 to be filed by June 7, 1971. The Mapleton inter-venors defaulted on this obligation, too. Moreover, the Mapleton intervenors were told on July 9th and 13th that the Board would, require a written showing in support of their contentions 3 and 4 (Tr. 2956-57, 2960, 3209-10). As they have been on notice of this requirement since May and were specifically told that it applied to their contentions 3 and 4 two months ago, their plea of ins'ufficient time should not evoke sympathy.
Mapleton intervenors' general statement that they -
were unable to submit testimony by September 15th because of trips abroad and academic commitments is not worthy of respect in this proceeding. Nothing is set forth as to why the ample notice of the Board requirements was inadequate or as to why Mapleton intervenors did not request additicaal
/
time earlier. No facts were set forth to show that the trips or academic commitments could not be postponed. The t
statement is insolent in its disregard of intervenors' responsibilities to conduct this proceeding in. good faith and to use their best effort to adhere to the time schedules set forth by the Board.
In view of their blatant disrespect for,and disregard of, Board deadlines in the past, preclusion on contentions 3 and 4 would be proper.
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- 3. ECCS Mr. Like argues (letter, p.5) that 15 days is not enough time in which to respond to intervenors' next submission on ECCS. This may or may not be true but what the order requires is not a response to applicant's submission but "a detailed statement of the nature of the affirmative ,
evidence which they intend to offer [on ECCS) in sufficient detail to provide Applicant en opportunity to prepare to meet it." This is something which they should have been working on since July 13th, when they were told they could participate on this issue (Tr. 3204-05) and should still be working on now.
- 4. Distinction Between NEPA and non-NEPA Issues The ;tepleton intervenors argue (letter, p.4) that no line may be drawn between the environmental and non-environmental issues. We discussed this question at pp.- 3-5 of our letter to the Board of August 18th and will not repeat that dir.cussion here. Suffice it to say that the Co= mission '
itself draws this distinction in Section D1 of the new Appendix D when it directs Boards to proceed . expeditiously with the radiological issues while waiting for environmental ,
reports and detailed statements to be filed.
- 5. Discov'ery and Statement of Issues on NEPA Issues The M'apleton Intervenors argue (letter, p.5) that there should be no NEPA discovery before the detailed statement is g y- ---c-- - , a ve -- -- p w-- ,yv-y y- ,--e- - -+-e- ,-s v # , v-
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filed. However,Section D of the new Appendix D doesn't prohibit it and it will move this protracted proceeding along. It is consistent with "the commission's continuing objective of minimizing undue delay in the conduct of its licensing proceedings" reiterated at p.3 of the new Appendix D.
Of course, if the suppl'ement to the environmental report or the detailed statement r&ises new matters, this would be without prejudice to intervenors seeking discover;r as to those matters. Thus, no one would be prejudiced and the proceedings would be expedited.* Similarly, the intervenors statements of their views on NEPA questions would Le without prejudice to supplementation if necessary in the light of the later filings.
- 6. Proposed Filings As the August 26th order made partial proposed findings '
optional, there is no cause at this time for anyone to be concerned about the Board's invitation for any parties to file them before the hearing is concluded.
l September 23, 1971 Respectfully submitted, Cs+<)
l LOWENSTEIN AND NEWMAN 1100 Connecticut Ave., N.W.
Washington, D.C. 20036 Of Counsel:
Attorneys for Applicant l Robert Lowenstein Consumers Power Company Harold P. Graves John K. Restrick .
Jerome E. Sharfman Richard G. Smith.
- This was the basis for our understanding in August with counsel that discovery should proceed and which we reported to the Board in our letter dated August 18, 1971 (p .2) .
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